Affirmed and Memorandum Opinion filed July 1, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00546-CV

MARY E. GONZALES, Appellant

V.

MAIN STREET ACQUISITION CORP., Appellee

On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 1017338

M E M O R A N D U M O P I N I O N

Appellant Mary E. Gonzales urges that the trial court erred in entering 

judgment in favor of Main Street Acquisition Corp. on this assigned credit card 

debt action. In a single issue, Gonzales argues that there is no evidence to support 

the damage award of $3,022.97. We affirm. 
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I. BACKGROUND

Gonzales obtained a credit card with HSBC Bank Nevada N.A. in 2005. 

HSBC assigned the account to Main Street. Main Street filed this sworn suit for 

breach of contract and account stated. Gonzales filed a verified denial. Main 

Street also served Gonzales with requests for admissions, to which Gonzales

responded.

The parties tried their dispute to the court without a jury. On May 22, 2013, 

the trial court signed a judgment for Main Street and awarded $3,022.97 in actual 

damages and $1,007.66 in attorney’s fees. This appeal followed.

II. ANALYSIS

Applicable Law

When we review the factual and legal sufficiency of the evidence following 

a bench trial, we apply the same standards as jury trials; that is, we view the 

evidence in the light most favorable to any challenged finding and indulge all 

reasonable inferences in support of the finding. See City of Keller v. Wilson, 168 

S.W.3d 802, 822 (Tex. 2005). 

A party is entitled to relief under the common law cause of action for 

account stated when (1) transactions between the parties give rise to indebtedness 

of one to the other; (2) an agreement, express or implied, between the parties fixes 

an amount due; and (3) the one to be charged makes a promise, express or implied, 

to pay the indebtedness. Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 298 

(Tex. App.—Houston [14th Dist.] 2010, no pet.). An agreement to the amount 

owed can be implied from proof that account statements were sent to the 

defendant, the defendant made charges and payments on the account, fees and 

interest were assessed on the account, and the defendant retained credit card 
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statements reflecting the fees and charges on the account without disputing them. 

Citibank (S.D.), N.A. v. Durden, No. 05-11-00154-CV, 2012 WL 6096569, at *2

(Tex. App.—Dallas Dec. 7, 2012, no pet.). 

The Evidence

To meet its burden at trial, Main Street relied upon two exhibits, both 

admitted without objection: the admissions from Gonzales; and a business records 

affidavit of Scott Loynd, Main Street’s designated agent, along with documents 

attached thereto. Neither party provided testimony about the amount owing on the 

account.

First, Gonzales’ responses to Main Street’s requests for admissions

established the following:

1. Gonzales applied for the credit card.

2. At Gonzalez request, the account was opened.

3. Gonzales understood from the time the account was opened that 

(a) use of the credit card results in a loan being made to Gonzales for 

the amount charged or cash advance requested and (b) Gonzales is 

required to repay all charges or cash advances incurred on the 

account.

4. Gonzales fully understood the risk and obligations associated with the 

credit card accounts.

5. Gonzales “made the purchases and took cash advances using the 

credit card made a basis of Plaintiff’s Original Petition.”

6. Main Street is the present owner and hold of the subject account.
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7. Since Gonzales opened the account, she has not notified Main Street 

of any dispute or error regarding any information contained in any 

monthly statement and, prior to Main Street filing the lawsuit, 

Gonzales never requested verification of the debt from Main Street or 

disputed the debt owing on the subject account.

8. Main Street requested and made a written demand upon Gonzales that 

she pay for the subject account.

9. Gonzales has failed to pay Main Street for the subject account. 

10.Gonzales last payment on the account was on or about June 30, 2009.

Second, in his affidavit, Scott Loynd averred, inter alia, that:

The records attached hereto are the original or the exact duplicates of 

the original records and documents maintained by MAIN STREET 

ACQUISITION CORP. pertaining to account number 

5491100007831434 the account of MARY E GONZALES [S.S. No. 

omitted] which was the name carried in our books and records. Per 

the Plaintiff’s Original Petition, there is a balance owing on said 

account of $3,022.97 as of February 27, 2010, after giving credit for 

all payments and credits.

Pertaining to the amount owing, the documentary evidence attached to Loynd’s 

affidavit shows the following statements of account directed to Mary E. Gonzales, 

with the specified amounts due and payable to HSBC:

(a) February 7, 2010 statement from Household Bank Platinum:

“Previous Balance” $ 2,946.22 

“Finance Charge” $ 74.75

“New Balance” $ 3,022.97

(b) January 7, 2010 statement from Household Bank Platinum:

“Previous Balance” $2,840.99
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“Purchases/Debits” $ 35.001

“Finance Charge” $ 72.73

“New Balance” $ 2,948.22

(c) December 7, 2009 statement from Household Bank Platinum:

“Previous Balance” $ 2,740.89

“Purchases/Debits” $ 35.00

“Finance Charge” $ 65.10

“New Balance” $ 2,840.99

(d) November 8, 2009 statement from Household Bank Platinum:

“Previous Balance” $ 2,636.66,

“Purchases/Debits” $ 35.00 

“Finance Charge” $ 69.23

“New Balance” $ 2,740.89

(e) October 7, 2009 statement from Household Bank Platinum:

“Previous Balance” $ 2,539.21

“Purchases/Debits” $ 35.00 

“Finance Charge” $ 62.45

“New Balance” $ 2,636.66

(f) September 7, 2009 statement from Household Bank Platinum:

“Previous Balance” $ 2,442.09

“Purchases/Debits” $ 35.00

“Finance Charge” $ 62.12

“New Balance” $ 2,539.21

(g) August 7, 2009 statement from Household Bank Platinum:

“Previous Balance” $ 2,347.35

“Purchases/Debits” $ 35.00

 

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“Purchases/Debits” of $35.00 for periods June, August, September, and October 2009 

are itemized as “Late Charge Assessments.” “Purchases/Debits” of $35.00 for periods January 

2010, December 2009, and November 2009 are listed as “Overlimit Charge Assessments.” The 

credit limit stated on all account statements is $2,600. 
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“Finance Charge” $ 59.74

“New Balance” $ 2,442.09

(h) July 7, 2009 statement from Household Bank Platinum:

“Previous Balance” $ 2,451.52

“Payments/Credits” $ 157.00

“Finance Charge” $ 52.83

“New Balance” $ 2,347.35

(i) June 7, 2009 statement from Household Bank Platinum:

“Previous Balance” $ 2,361.60

“Purchases/Debits” $ 35.00

“Finance Charge” $ 54.92

“New Balance” $ 2,451.52

(j) May 7, 2009 statement from Household Bank Platinum:

“Previous Balance” $ 2,386.49

“Payments/Credits” $ 78.00

“Finance Charge” $ 53.11

“New Balance” $ 2,361.60

(k) April 7, 2009 statement from Household Bank Platinum:

“Previous Balance” $ 2,407.99

“Payments/Credits” $ 75.00

“Finance Charge” $ 53.50

“New Balance” $ 2,386.49

(l) March 8, 2009 statement from Household Bank Platinum:

“Previous Balance” $ 2,441.11

“Payments/Credits” $ 83.00

“Finance Charge” $ 49.88

“New Balance” $ 2,407.99

Gonzales nonetheless argues that the $3,022.97 damages award is

unsupported by credit card statements during the time that Gonzales actually used 
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the credit. Stated differently, Gonzales urges that Main Street’s burden was to 

bring credit card statements from the inception of the account in 2005 to show how 

the balance was accumulated. Gonzales does not cite and we do not find any 

authority for holding Main Street to such a burden. 

The trial court examined evidence of twelve months of credit card 

statements addressed to Gonzales. There is no evidence to suggest the statements 

were not received by Gonzales. The statements culminate in February 2010, in a 

total amount of $3,022.97, the sum awarded by the trial court. The trial court also 

examined the affidavit from Scott Loynd, in which he averred, from stated 

personal knowledge, that the balance owing on the account through February 27, 

2010 is $3,022.97. Finally, the trial court received Gonzales’ admissions that she 

opened the subject account, understood that she was agreeing to repay sums 

charged or advanced, and that she “made the purchases and took cash advances 

using the credit card made the basis of Plaintiff’s Original Petition.” Gonzales also 

admitted that Main Street now owns the account, and, despite written notice of the 

sums owing, she has neither paid nor disputed the account as reflected in any 

monthly statement. 

Gonzales, herself, provided no evidence or testimony about the subject 

account.2 The amount of the debt is thus established by numerous credit card 

statements, the last of which shows the balance due and owing. See Nguyen v. 

Citibank N.A., 403 S.W.3d 927, 932 (Tex. App.—Houston [14th Dist.] 2013, pet. 

denied) (holding that Citibank’s affidavit from a custodian of records 

authenticating numerous billing statements and averring that a balance of 

 

2

The trial court precluded Gonzales from offering any evidence about payments made as 

Gonzales did not plead a “payment” affirmative defense. Tex. R. Civ. P. 94. Gonzales does not 

appeal this evidentiary ruling.
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$24,867.81 was due and owing was uncontroverted and, thus, sufficient evidence

for summary judgment).

Viewing this evidence in the light most favorable to the trial court’s 

judgment, we hold that the evidence is legally and factually sufficient to support 

the trial court’s award of $3,022.97. We overrule Gonzales sole issue on appeal 

and, therefore, affirm the judgment.

/s/ Sharon McCally

Justice

Panel consists of Justices Christopher, Jamison, and McCally.